SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

11 

CAF 14-01367 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

IN THE MATTER OF CHRISTOPHER D.S., 

JASMINE S., MACKENZIE L.S., TIMOTHY A.S., 

AND ZACHARY T.S. 

----------------------------------------- MEMORANDUM AND ORDER

ALLEGANY COUNTY DEPARTMENT OF SOCIAL 

SERVICES, PETITIONER-RESPONDENT; 

 

RICHARD E.S., RESPONDENT-APPELLANT. 

KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT.

THOMAS A. MINER, COUNTY ATTORNEY, BELMONT (LESLIE J. HAGGSTROM OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

JOAN MERRY, ATTORNEY FOR THE CHILDREN, HORNELL. 

MICHAEL D. BURKE, ATTORNEY FOR THE CHILD, OLEAN. 

 

Appeal from an order of the Family Court, Allegany County (Thomas

P. Brown, J.), entered April 15, 2014 in a proceeding pursuant to

Social Services Law § 384-b. The order, among other things,

transferred respondent’s guardianship and custody rights with respect

to the subject children to petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Social Services Law 

§ 384-b, respondent father appeals from a decision terminating his

parental rights with respect to the five subject children. “Although

no appeal lies from a mere decision . . . , we exercise our discretion

to treat the notice of appeal as valid and deem the appeal from the

decision as . . . taken from the order[] of fact-finding and

disposition” (Matter of Ariel C.W.-H. [Christine W.], 89 AD3d 1438,

1438; see Matter of Kessler v Fancher, 112 AD3d 1323, 1323; see

generally CPLR 5520 [c]). 

Contrary to the father’s contention, Family Court did not abuse

its discretion in denying his recusal request. The father’s request

was based on his allegation that the court presided over the

prosecution of the father for the sexual abuse of his daughter that

formed the basis for this proceeding, and on the father’s contention

that the court obtained information in violation of the father’s

attorney-client privilege. Initially, we note that the father’s
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CAF 14-01367 

appellate brief does not address the alleged violation of his

attorney-client privilege, and thus he has abandoned that contention

(see generally Ciesinski v Town of Aurora, 202 AD2d 984, 984).

“ ‘Where, as here, there is no allegation that recusal is

statutorily required . . . , the matter of recusal is addressed to the

discretion and personal conscience of the [Judge] whose recusal is

sought’ ” (Matter of Angie M.P., 291 AD2d 932, 933, lv denied 98 NY2d

602; see Matter of McLaughlin v McLaughlin, 104 AD3d 1315, 1316; see

generally Matter of Murphy, 82 NY2d 491, 495). The fact that the same

jurist presided over this proceeding in Family Court as well as the

criminal prosecution is not a statutory basis for recusal (see Matter

of Karina U., 299 AD2d 772, 773, lv denied 100 NY2d 501; see also

Matter of Kelley v VanDee, 61 AD3d 1281, 1284; see generally People v

Moreno, 70 NY2d 403, 405-406), and we perceive no abuse of discretion.

The father further contends that the court violated his right to

due process by determining, inter alia, that petitioner was not

required to make diligent efforts to reunite him with the subject

children. Although the father did not appeal from the intermediate

order in which the court made that determination, “[a]n appeal from a

dispositional order of Family Court brings up for review the propriety

of a fact-finding order” (Matter of Lisa E. [appeal No. 1], 207 AD2d

983, 983). Nevertheless, as the father concedes, the record on appeal

does not include the evidence on which the court relied in determining

that petitioner need not make diligent efforts to reunite him with the

subject children, or a record of the proceedings in which the court

made that determination. “It is the obligation of the appellant to

assemble a proper record on appeal” (Gaffney v Gaffney, 29 AD3d 857,

857; see Matter of Lopez v Lugo, 115 AD3d 1237, 1237). The father,

“as the appellant, submitted this appeal on an incomplete record and

must suffer the consequences” of our inability to review his

contention concerning the court’s determination that petitioner need

not make diligent efforts to reunite him with the subject children

(Matter of Santoshia L., 202 AD2d 1027, 1028; see Matter of Caughill v

Caughill, 124 AD3d 1345, 1347).

We have considered the father’s remaining contentions regarding

the alleged violation of his due process rights and conclude that they

are without merit. 

Entered: February 5, 2016 Frances E. Cafarell

Clerk of the Court